Pretrial Diversion in Massachusetts

Pretrial diversion is a way for some people charged with a crime in Massachusetts to complete a program instead of having the case prosecuted. When the program is finished, the charge may be dismissed. Attorney Barabino treats it as a valuable tool, and he pursues it aggressively for clients who may qualify. A criminal charge can follow you long after you leave the courtroom, affecting school, work, and even relationships.

If you have been arrested or charged, call the Medford, Massachusetts, law office of William Barabino at 781-393-5900 to schedule a free and confidential consultation.

Before and After Arraignment

A diversion request can be made both before and after arraignment. Arraignment is the first court date on a criminal complaint.

When the request is made, and who decides it, depends on the district attorney:

• If the district attorney does not object, the case may be resolved before arraignment.
• If the district attorney objects, the request is made after arraignment, and the judge decides.

Even if a person has been arrested, a request made when they first appear in court, before arraignment, may lead to a program and a resolved case. This is only possible if the person qualifies and the charge is one that diversion allows. The sections below explain who may qualify.

Why Before Arraignment Matters

Arraignment is when a case goes on your criminal history. Once that happens, the entry stays there even if the case is later dismissed.

That entry can follow you. You may be asked about it again and again, for jobs, licenses, housing, and many other things. This is true whether you are a first offender or not. Attorney Barabino represents many first offenders, and his goal is the same for everyone: if the case can be resolved before arraignment, it never goes on your criminal history.

What Is a Program?

The law defines a “program” very broadly. It is not limited to one kind of treatment.

A "program" is defined broadly as "any program of community supervision and services including, but not limited to, medical, educational, vocational, social, substance use disorder treatment and psychological services, corrective and preventive guidance, training, performance of community service work, counseling, provision for residence in a halfway house or other suitable place, and other rehabilitative services designed to protect the public and benefit the individual."
Mass. Gen. Laws ch. 276A, § 1

In practice, many programs are not inpatient programs. Many are manageable for a person who is working, going to school, or caring for family. What fits depends on the person and the charge.

Diversion is about creativity. Attorney Barabino has presented a wide range of programs to the courts, and the courts appreciate that creativity.

Common programs include substance use treatment, anger management, counseling, rehabilitation, and community service.

Are You Eligible?

Diversion under Chapter 276A is a fairly new option in Massachusetts. A long list of charges do not qualify, but some do. Since the 2018 criminal justice reform law, there is no age limit, so an adult of any age may be considered. The reform also ended the rule that the probation department had to approve each program. That change was explained in a District Court memo from the Chief Justice on April 18, 2018.

To be eligible, generally:

• You have not been convicted of a crime as an adult (after age 18). The law makes an exception for traffic violations that could not have brought jail time.
• You have no outstanding warrants, continuances, appeals, or open criminal cases in any court in Massachusetts, in another state, or in federal court.
• The charge is one that could carry jail time and can be finally decided in the District Court or the Boston Municipal Court.
• A program recommends that you would benefit from it.

Some charges are not eligible. Diversion is not allowed for:

• Any charge on the list of offenses that cannot be treated as a civil infraction (see the next section).
• Any charge that could carry more than five years of incarceration.
• Any charge with a mandatory minimum jail sentence.
• Any charge that the law does not allow to be continued without a finding or placed on file.

There are exceptions. Assault and assault and battery can still qualify, even though most other crimes against a person do not. So can picketing a court and disrupting court proceedings. Veterans and people on active military service have additional rules.

Not every requirement is always a dead end. In some cases a judge can still allow an assessment for a person who is missing one of the requirements listed above, as long as the charge is not an excluded one.

Charges That Cannot Be Decriminalized Are Also Excluded

Under another Massachusetts law, a judge can sometimes treat a lesser charge as a civil infraction instead of a crime. This is called decriminalization. The law lists offenses that are not eligible for it. Those same offenses are excluded from diversion.

The list includes serious driving offenses such as OUI, violations of abuse prevention orders, all crimes against the person (with the assault and battery exception above), firearms and weapons offenses, certain sex-related offenses, and many others. The full list, by statute number, is below.

The statute itself controls. Attorney Barabino checks the current law for every charge.

The Assessment and the Judge’s Decision

A person who is considered for diversion can be given a 14-day continuance so a program can assess whether the person would benefit. After the assessment, the program sends the judge a report. The judge then gives the prosecutor and any victim a chance to make a recommendation. Neither one makes the final decision. The judge does.

If the judge approves diversion, the case is put on hold while the person follows a plan of services. If the program is completed, the judge may dismiss the charge. If the person does not follow the plan, the case can go back to court. For a step-by-step walk through of the process, read our guide to diversion in Massachusetts criminal cases.

Contact Attorney William Barabino

Whether diversion is available depends on the charge, the court, and your record. The sooner it is raised, the more options there may be. If you are facing a criminal charge, call Attorney Barabino at his Medford, Massachusetts, law office at 781-393-5900. You may also complete his online contact form.

Attorney Barabino serves clients throughout Massachusetts.